[Cites 9, Cited by 0]
Bombay High Court
Surekha Suresh Tankkar vs Smt. Sarita V. Tahmankar And Ors. on 6 January, 2026
2026:BHC-OS:89
TS-73-2011 (final).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 73 OF 2011
IN
TESTAMENTARY PETITION NO. 511 OF 2010
1. Suresh Shantaram Tankkar ]
(since deceased) ]
1a. Surekha Suresh Tankkar ]
Aged : 80 years ]
1b. Alka Uday Tarphe ]
Aged 54 years, ]
1c. Supriya Wadekar ]
Aged 53 years, ]
1d. Bharati Tankkar ]
Aged 45 years, ]
All Hindu, Indian Inhabitant ]
residing at Hindamat Niwas, Hindmata ]
Printing Press, Dr. Ambedkar Road, ]
Parel T.T., Mumbai 400 012. ] ....Plaintiffs
Versus
1. Sunetra S. Nikam, ]
Wife of Late Shri Shrikrishna Nikam ]
Religion : Hindu, of Bombay, aged 69 years, ]
Indian Inhabitant, residing at Sampada, E/3, ]
Shastri Nagar, S.V. Road, Borivali (West), ]
Mumbai - 400 082. ]
2. Sarita V. Tamhankar, ]
Wife of Mr. Vitthal A. Tahmankar ]
Religion : Hindu, of Bombay, aged 66 years, ]
Indian Inhabitant, residing at Flat No. 104, ]
C-2, Transit Camp, Opp. Mahindra Gat No. 5, ]
Samta Nagar, Kandivali (East), ]
Mumbai - 400 101. ]
3. Smita Suhar Morje ]
Wife of Late Shri Suhas G. Morje ]
Religion : Hindu of Bombay, aged 64 years, ]
Indian Inhabitant, residing at Alishan, ]
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1st floor, Rambaug, Borivali (West), ]
Mumbai - 400 092. ]
4. Aparna A. Kamle ]
Wife of Late Shri Anand Kamle ]
Religion : Hindu of Bombay aged 62 years, ]
Indian inhabitant, residing at Udayshree ]
Colony, Bunglow No. 10/A, Bhandup (East), ]
Mumbai - 400042. ]
5. Sudha S. Marathe ]
Wife of Shri Srikant Marathe ]
Religion : Hindu of Bombay aged 59 years ]
Indian Inhabitant, residing at 1st Floor, ]
Hindmata Niwas, Hindmata Printing Press, ]
Dr. Ambedkar Road, ]
Parel T.T., Mumbai - 400 012. ] ...Defendants
------------
Mr. Yatin Shah i/b M/s. Yatin Shah and Co. for Plaintiffs.
Mr. Amol Joshi, Mr. Vinod Rane for Defendant.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : 12th December, 2025.
Pronounced on : 6th January, 2026.
Judgment :
1. Testamentary Petition No. 511 of 2010 was filed seeking grant
of Letters of Administration with Will annexed in respect of the
property and credits of Shantaram Kanhoji Tankkar alias Shantaram K.
Tankkar who was residing at the time of death at 2/60, Petal Terrace,
Parel, Mumbai - 400 012. The deceased expired on 13th February, 1978.
2. The son of the deceased propounded the Will dated 2 nd
November, 1974 by the present Petition, which was opposed by the
daughters of the deceased namely Sunetra S. Nikam, Smita S. Morje,
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Sudha Shrikant Marathe and Sarita V. Tamhankar by filing caveats
raising identical grounds of objection broadly as follows:
(a) Unexplained delay of 13 years,
(b) forged and fabricated document,
(c) Various corrections and improvisations in different
handwritings in paragraphs 1, 2,8 and 10 of the alleged
unregistered Will,
(d) Affidavit of attesting witnesses has not been annexed to
the Petition,
(e) Petition is counterblast to the partition suit filed by the
Caveators.
3. The Petition was converted in Testamentary Suit No 73 of 2011.
Vide order dated 19th December, 2016 the following issues were
framed:
(i) Whether the Plaintiff proves that the writing
dated 2nd November, 1974 was duly and validly
executed and attested in accordance with law
as the last Will and testament of the deceased,
Shantaram Kanhoji Tankkar alias Shantaram K.
Tannkar?
(ii) Whether the Plaintiff proves that at the time
of the said alleged Will, the deceased was of
sound and disposing state of mind, memory and
understanding?
(iii) Whether the Defendants prove that the
alleged Will is forged and fabricated?
(iv) Whether the Defendants prove the alleged
Will is forged document?
(v) What relief and what order?
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4. During the pendency of the proceedings, the original Plaintiff
expired and his legal heirs were brought on record. The Plaintiffs filed
the Affidavit of evidence of one attesting witness on 21st March, 2017.
PW-1 did not offer himself for cross examination and his evidence was
closed on 12th September, 2017. The Planitiffs filed Chamber Summons
No 81 of 2018 seeking permission to lead evidence without examining
the attesting witness which was rejected vide order dated 5 th October,
2018.
5. The Plaintiff No. 1A was examined as PW-2. She has deposed that
the Will was handwritten and was duly signed by the deceased and
attesting witnesses in her presence, at which time, the original
Plaintiff, the deceased and both the attesting witnesses were present.
She has deposed that certain corrections were made in the Will in
handwriting of the deceased and the name of the attesting witnesses
and deceased was written by the deceased. The deceased had
prepared a handwritten Will earlier in his own handwriting which was
not signed and required corrections, hence, the deceased prepared the
Will which was signed by the deceased. She has deposed about
communication of 1943, conveyance of 1960 and indenture of lease of
1969 to prove the signature of the deceased. PW-2 produced the
following documents :
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(a) The original handwritten version of the draft Will
by the deceased (Exhibit P-1).
(b) Handwritten Will dated 2nd November, 1974
(Exhibit P-2).
(c) Original letter written by the deceased in his own
handwriting on the letter head of Hindmata Printing
Press dated 14th March, 1943 (Article X-1).
(d) Original Indenture of Lease dated 17th October,
1969 between BEST and the deceased (Exhibit P-3).
(e) Original deed of conveyance dated 6 th May, 1960
between the Governor of Maharashtra and the
deceased in respect of property at Vengurla, Ratnagiri
(Exhibit P-4).
6. The Defendants examined Defendant No. 1 as DW-1, who
deposed as to the contents of the affidavit in support of the caveat.
There was no documentary evidence adduced by the Defendants. PW-2
and DW-1 were duly cross examined and the report of Court
Commissioner was submitted to the Court.
7. Learned counsel for Plaintiffs submits that Exhibit P-1 is
holograph Will of the deceased and points out Paragraph No. 6 of the
Affidavit of evidence of PW-2 deposing that the handwritten Will was
written by the deceased himself and has been duly proved. He submits
that there is greater presumption in favor of genuineness of
holograph Will. He would further submit that PW-2 has specifically
deposed in answer to question nos. 16 and 20 that Exhibit P-1 was
made by the deceased and that the said Will was made in front of P.W.-
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2. He would further submit that insofar as the Issue No. 1 is concerned,
the evidence of P.W.-2 would show that the Will dated 2 nd November,
1974 was executed and attested in presence of P.W.-2. He would
further submit that in response to question no. 15, the witness has
stated that she does not remember as to who had written the Will
being exhibit P-2 and the confusion was sought to be created by once
again asking the same question in response to which, the witness has
stated in answer to question no. 52 that the Will may be handwritten
by Subhash Hule who was the attesting witness. He submits that the
deposition is to be considered in light of the fact that P.W.-2 was aged
about 82 years at the time of evidence. He submits that the signature
of the deceased on Exhibit P-2 is proved by the deposition of PW-2 and
by the answer to question no. 16 in the cross-examination where P.W.-2
has stated that the Will is in the handwriting of the deceased.
8. He would submit that insofar as the Issue No. 2 is concerned, in
the cross-examination, PW-2 has deposed that the deceased was
severely diabetic during his lifetime. He submits that there is no
positive evidence regarding infirmity of the deceased as regards the
physical and mental state to execute the Will. He would further submit
that comparison of the signature of the deceased on Exhibit P-2 and
Exhibit P-3 and P-4 clearly shows the similarity in the signature. He
submits that in the cross-examination, DW-1 has accepted that the
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signature on Exhibit P-3 and P-4 are that of the deceased. He submits
that Exhibit P-3 and P-4 which are admitted documents do not show
that the deceased used to put date below his signature.
9. He would submit that insofar as the evidence of attesting
witness is concerned, one of the attesting witnesses, i.e. Vasudev
Dhavade filed his Affidavit of evidence, however, he did not offer
himself for cross-examination due to his ill-health. He submits that the
Plaintiffs made all efforts for the attesting witness to appear before
this Court. He would submit that P.W.-2 has proved the Will otherwise
and the same be allowed under Section 71 of the Indian Evidence Act,
1872.
10. Insofar as the Issue Nos. 3 and 4 are concerned, he submits that
the burden was upon the Defendants to prove that the Will is forged
and fabricated. He submits that except bare deposition in Paragraph
Nos. 6 and 8, there was no documentary evidence produced by the
Defendants to prove the said issues. He would further submit that it is
the positive case of the Plaintiff that the Will was written by the
Subhash Hule and the same has been seen stated in the cross-
examination at page no. 52.
11. He would submit that the Plaintiffs have brought on record a
holograph Will Exhibit P-1 which is not disputed and which has been
duly proved. He submits that it is proved that the deceased has made
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correction in his own handwriting and even the names of the attesting
witnesses were written by the deceased himself as deposed by P.W.-2.
He submits that the Will has been duly proved through the evidence of
P.W.-2 even if the attesting witness was not examined and in support,
he relies upon the following decision:
Ajit Chandra Majumdar vs. Akhil Chandra
Majumdar1
12. Per contra learned counsel for Defendants has taken this Court
through the Affidavit in support of the Caveat and submits that the
Plaintiffs have failed to prove the Will as per Section 63(c) of the Indian
Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872.
He submits that the attesting witness one Vasudev Dhavade filed his
Affidavit of evidence, however, did not offer himself for cross-
examination. Drawing support from the decision of the Hon'ble Apex
Court in the case of Janki Narayan Bhoir vs. Narayan Namdeo
Kadam2, he submits that mere proof of signature of the testator on the
Will was not sufficient and the attestation thereon is also to be proved
as required under Section 63(c) of the Indian Succession Act, 1925. He
submits that even assuming that P.W.-2 had led evidence under
Section 71 of the Indian Evidence Act, 1872 on the basis that she was
present when the alleged Will was signed and executed by the
1 AIR 1960 CALCUTTA 551.
2 (2003) 2 SCC 91.
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deceased, the cross examination would show contradictory answers in
question no. 15 and question no. 52. He would further point out that in
the cross-examination of D.W.-1, a contrary suggestion was given in
question no. 20 that the Will was in the handwriting of Ms. Sunetra
Nikam. He would further submit that the response in the cross-
examination of P.W.-2 would show that P.W.-2 was not aware about the
place, time and execution of the alleged Will. He would further point
out that there is a specific admission given in response to question no.
66 that P.W.-2 was not at home at that time and therefore, is not aware
as to whether any deceased or any other person read the alleged Will
(Exhibit P-2) before its execution. He would further point out that in
response to question no. 87, P.W-2 has admitted that the attesting
witnesses had not signed the alleged Will in the presence of the
deceased.
13. He would further submit that PW-2 has admitted that at the time
of execution of alleged Will, the attesting witnesses were aged about
20-25 years and were residing at their native place at Vengurla and it is
incomprehensible that the deceased would call the attesting witnesses
who were of young age from Vengurla only for the purpose of
attesting the Will. He would further submit that it is not the case that
the attesting witnesses are dead or could not be found and in fact,
P.W.-2 in her cross-examination has admitted having knowledge about
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the address of the witnesses and in spite thereof, has taken no steps to
summon other attesting witness-Mr. Subhash Hule. He would further
submit that the execution of the Will is surrounded in suspicious
circumstance which has to be removed by propounder before the Will
can be accepted as a valid Will. He would further submit that Issue No.
1 has not been proved by the Plaintiffs, the other issues are not
required to be answered. He would further submit that there is no
explanation in the Petition or in the evidence about the propounding
of the Will after 30 years and that it is admitted as a response to
question no. 107 that the Testamentary Petition was filed as a counter-
blast to the partition suit. In support he relies upon the following
decisions:
Meena Pradhan vs. Kamla Pradhan3
Janki Narayan Bhoir vs. Narayan Namdeo
Kadam4
As to Issue No. 1 :
14. Before proceeding to analysis of the evidence adduced by the
parties, it would be appropriate to have a look at the relevant
statutory provisions dealing with the validity and execution of the Will.
Section 63(c) of the Indian Succession Act, 1925 reads as under:
"63. Execution of unprivileged wills.--Every testator,
not being a soldier employed in an expedition or
engaged in actual warfare, 1 [or an airman so employed
3 (2023) 9 SCC 734.
4 (2003) 2 SCC 91.
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or engaged,] or a mariner at sea, shall execute his will
according to the following rules:--
(a) ...
(b).....
(c) The will shall be attested by two or more witnesses,
each of whom has seen the testator sign or affix his
mark to the will or has seen some other person sign the
will, in the presence and by the direction of the testator,
or has received from the testator a personal
acknowledgment of his signature or mark, or of the
signature of such other person; and each of the
witnesses shall sign the will in the presence of the
testator, but it shall not be necessary that more than one
witness be present at the same time, and no particular
form of attestation shall be necessary."
15. Section 68, Section 69 and Section 71 of Evidence Act, 1872
reads as under:
"68. Proof of execution of document required by law to
be attested:
If a document is required by law to be attested, it shall
not be used as evidence unless atleast one attesting
witness has been called for the purpose of proving its
execution, if there be an attesting witness alive, and
subject to the process of the Court and capable of giving
evidence.
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a will, which has been registered in
accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution
by the person by whom it purports to have been
executed is specifically denied.
69. Proof where no attesting witness found.--If no
such attesting witness can be found, or if the document
purports to have been executed in the United Kingdom,
it must be proved that the attestation of one attesting
witness at least is in his handwriting, and that the
signature of the person executing the document is in the
hand writing of that person.
71. Proof when attesting witness denies the
execution.--If the attesting witness denies or does not
recollect the execution of the document, its execution
may be proved by other evidence."
16. A reading of the above provisions indicates the statutory
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requirement of the attestation of the Will by two or more witnesses.
The mode of proof of execution of document required by law to be
attested mandates the evidence of atleast one attesting witness failing
which the document shall not be used in evidence. A Will is required to
comply with all requirement of Section 63(c) of Succession Act, 1925
before it can be accepted as the last Will and Testament of the
deceased. Section 69 and Section 71 of Evidence Act deals with the
eventuality of the attesting witnesses not being found or upon denial
of execution of the document by the attesting witness. The Will being
a document requiring attestation cannot be used in evidence without
examining at least one attesting witness or proving the same under
Section 69 of Section 71 of Evidence Act.
17. The deposition of the attesting witness must prove the
ingredients of Section 63 (c) that he has seen the testator sign or affix
his mark to the Will or has received from the testator a personal
acknowledgment of his signature or mark and that he has signed the
Will in presence of the testator.
18. The burden is upon the propounder of the Will to prove the due
and valid execution and attestation as per law. In the present case,
PW-1 has produced original handwritten version of the draft Will by the
deceased (P-1) and hand written Will dated 2 nd November, 1974 (P-2).
P-1 is an undated, unattested document and is deposed to have been
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written by the deceased. The Plaintiffs have propounded the Will
dated 2nd November, 1974 and the grant is sought in respect of the said
Will and issue has been accordingly, framed.
19. Insofar as Exhibit P-1 is concerned, there is no suggestion in the
cross examination of PW-2 that the earlier document i.e Exhibit P-1
was not in the handwriting of the deceased. The evidence of PW-2 that
Exhibit P-1 was handwritten by the deceased in her presence has not
been shaken in the cross examination. However, the proof of Exhibit P-
1 being in the handwriting of the deceased does not prove the valid
and due execution of Exhibit P-2, which is the Will propounded by
Plaintiffs and is required to be proved to have been validly executed
and attested as per law. The Will dated 2 nd November, 1974 has been
attested by Subhash Dattaram Hule and Vasudev Vishnu Dhavade. The
Affidavit in lieu of examination in chief of Vasudev Vishnu Dhavade
was filed on record, however, Vasudev Dhavade failed to offer himself
for cross-examination and his evidence cannot be considered.
20. In such eventuality, it was open for the Plaintiffs to examine the
other attesting witness i.e Subhash Dattaram Hule. No steps were
taken by the Plaintiffs to secure presence of Subhash Hule either
themselves or through process of the Court. PW-2 has given vital
admissions in her cross examination as regards availability of Subhash
Hule which is reproduced hereinbelow:
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"38) Can you tell when did you contact Mr. Subhash Hule last
time?
Ans: On or about 7 or 8 moths ago I had met Mr. Subhash Hule.
49) Whether Mr Subhash Hule work in Mumbai before in the
year 1974?
Ans: I do not remember if Mr Subhash Hule was in Mumbai Bombay
in the year 1974 but he is working in Bombay today.
58) When you met Mr Subhash Hule 7-8 months back, did you
ask him to appear as witness in the present matter?
Ans: Yes, it is correct that I had asked Mr Subhash Hule to appear as
witness in the present matter.
Witness volunteers: Mr Subhash Hule told me that he would not be
able to appear as a witness in the present matter as he was not
keeping good health.
59) Did you ask Mr Subhash Hule where does he residing at that
time?
Ans: My daughter had found the address of Mr Hule and there was
no need to ask him where he was residing."
21. The cross examination of PW-2 proves that the Plaintiffs were in
contact with Subhash Hule and were aware of his whereabouts.It is
therefore, not the case that the attesting witnesses were not traceable
or could not be found. No efforts were taken by the Plaintiffs for
issuing witness summons to Subhash Hule for giving evidence.
Considering the answer in response to question no. 52 by P.W.-2 that
the Will (Exhibit P-2) may be handwritten by Subhash Hule who was
also the attesting witness to the Will, the best possible evidence was
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available with the Plaintiffs. Despite thereof, the Plaintiffs have failed
to examine Subhash Hule to prove the due execution of the Will
consequent to the failure of the other attesting witness Vasudev
Dhavade to give evidence. The provisions of Section 69 and Section 71
of Evidence Act, 1872 can be resorted to only where no attesting
witness is found or when the attesting witness denies the execution,
which is not the case here. There is no deposition to support proof of
the execution by other evidence as contemplated under Section 71 of
the Indian Evidence Act, 1872. Pertinently, an application was made
under Section 71 of the Indian Evidence Act, 1872 which was rejected
by the Court. The non-examination of the attesting witnesses even
when the details were known to the Plaintiffs prove fatal to the case of
the Plaintiffs as the requirements of Section 63(c) of Succession Act
have not been satisfied. Consequently, the Plaintiffs have failed to
prove that the Will dated 2nd November, 1974 was duly and validly
executed and attested in accordance with law. Issue No 1 is therefore
answered against the Plaintiffs.
22. Going a step further and examining whether the execution is
proved by other evidence adduced by the Plaintiffs though not
required, PW-2 has deposed that the Will dated 2nd November, 1974
(Exhibit P-2) was handwritten and duly signed by the deceased and
attesting witness and that P.W.-2 was present when the Will was
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signed and executed by the deceased along with her husband as well as
the attesting witnesses who were all present together at the time of
execution of Will. It is further deposed that there are certain
corrections made in the Will and they were made in the handwriting of
the deceased and even the name of the attesting witnesses as also the
name of the deceased were written by the deceased himself on the
last page of the Will.
23. Exhibit P-2 is a handwritten Will and there is no deposition by
PW-2 about the identity of the person who has written the Will dated
2nd November, 1974. In cross examination, questions were put in
respect of the person who has written the Will-Exhibit P-2 to which the
response is as under:
"Q.15. You have stated that "the Will was handwritten"
can you tell who had written the alleged Will (Exhibit P-
2)
Ans: I cannot remember currently.
Q. 52: Can you answer now?
Ans: I am not sure but probably it may be handwritten by
Mr. Hule.
Q 54: Can you tell us where the alleged Will (Exhibit P-2)
was prepared?
Ans: I do not remember.
Q 66: Did Late Mr. Shantaram Tankkar or any other
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person read the alleged Will (Exhibit P-2) before its
execution?
Ans: I was not at home at that time and therefore I do not
know whether any person read the alleged Will (Exhibit P-2)
before its execution.
Q 87: Is it correct to say that neither Mr. Subhash Hule
nor Mr. Vasudev Dhavade signed the alleged Will (P-2)
in the presence of Mr. Shantaram Tankkar?
Ans: Yes, it is correct."
24. In cross examination of DW-1, the suggestion given in question
no. 20 was that the document was written in handwriting of Mrs.
Sunetra Nikam. The vital admissions in the cross-examination of PW-2
demolishes the case of the PW-2 being present at the time when the
Will was executed as also the corrections being made in the Will in the
handwriting of the deceased and affixing of the signature by the
deceased on the Will as well as the attestation by the attesting
witnesses. P.W.-2 was also confronted with the place, time and
execution of Exhibit P-2 in response to question no. 18, 22, 54, 55 and
56 and has failed to give any details about the place, time and
execution of the Will. Upon cumulative appreciation of the evidence on
record, the presence of PW-2 at the time of execution of the Will dated
2nd November, 1974 and its due attestation is doubtful. Even for the
purpose of Section 71 of Evidence Act, the Plaintiffs have failed to
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adduce cogent evidence to prove that the Will dated 2 nd November,
1974 was duly and validly executed. Mere proof of signature of
testator does not prove the due execution as per law, which requires
proof of attestation as per Section 63(c) of Succession Act.
25. It is well-settled that the conscience of the Court is required to
be satisfied that the Will has been duly and validly executed and there
are no suspicious circumstances surrounding the execution of the Will.
Exhibit P-2 is Will which has been propounded by the Plaintiff stating
to have been executed by the deceased on 2nd November, 1974. In
response to question no. 18, P.W.-2 has deposed that the Exhibit P-1
seems to have been made on 2nd November, 1974. It is highly
improbable that if the Will was prepared on the same date of 2 nd
November, 1974, in the handwriting of the deceased himself, a
separate Will would be handwritten on the same date by some other
person. It would have been more acceptable if Exhibit P-1 would have
been attested by the parties as it is the Plaintiff's own case that all the
attesting witnesses were present. There is no reason as to why on the
same date, a separate Will would have been prepared and not the
holograph Will being attested and executed in accordance with law. It
is also highly improbable that the attesting witnesses who admittedly
were about 22-25 years of age at the relevant time would have been
called from Vengurla to Mumbai for the purpose of attesting the Will.
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P.W.-2 has admitted in response to question nos. 36, 39, 40, 44 and 46
that the witnesses were residing in their village. P.W.-2 has further
admitted that she does not know the place of the residence of the
attesting witness in the year 1974. The burden was upon the Plaintiff
to dispel the suspicious circumstance which the Plaintiff has failed to
do.
26. As the Plaintiffs have failed to prove due execution of the Will, it
is therefore, not necessary for this Court to render any findings on
Issue Nos. 2, 3 and 4.
27. Consequently, the Suit and the Testamentary Petition stands
dismissed.
28. Decree be drawn up accordingly.
[Sharmila U. Deshmukh, J.]
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